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Judge Brown prepares to assume role of chief

By: dmc-admin//May 21, 2007//

Judge Brown prepares to assume role of chief

By: dmc-admin//May 21, 2007//

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“The court wasn’t cobbled together. It was a measured, studious effort to get it right from the beginning.”

Hon. Richard S. Brown

When Wisconsin Court of Appeals Judge Richard S. Brown becomes the court’s new chief judge in August, replacing retiring Chief Judge R. Thomas Cane, he will bring a lot of institutional memory with him.

Except for Judge Charles P. Dykman, Brown is the only current member of the court who has been there since its inception in 1978.

The original 12 judges (there are 16 now) literally built the court from scratch. Within a week of their respective elections to the court, they all met to discuss how the court would be organized.

They also traveled, talking to intermediate appellate judges around the country to find out what worked, what didn’t, and what they would do if they had the opportunity to start a new court from scratch.

“The court wasn’t cobbled together,” Brown said during a recent interview. “It was a measured, studious effort to get it right from the beginning.”

Two challenges were present at the beginning, and are still with the court: handling the caseload without falling behind; and maintaining a unified court, despite differences in the four districts.

Caseload

Great attention was paid to how much time should lapse from the time an appeal is filed until it is decided. The advice from appellate judges in other states was to be resolute regarding time limits on attorneys. “I was told, ‘don’t be lax regarding time limits; that’s how backlogs develop,’” Brown said. “Once permissiveness is institutionalized regarding time limits and page limits for briefs, it becomes very difficult to backtrack.”

Brown noted that some courts at the time had backlogs as long as three years. “Our mission was that the appellate court would provide a quick and inexpensive process.”

Nevertheless, a backlog quickly developed anyway. The court expected to resolve roughly 300 appeals per year per district. But within two years, 3,000 appeals were being filed annually.

Before the establishment of the court, if parties appealed to the Supreme Court, and the court accepted the case, they could expect a three-year delay before a decision. As a result, parties didn’t appeal; instead, they threatened to appeal as a means of forcing a compromise.

Once the court of appeals was established, providing a fast, cost-efficient alternative, parties appealed in unanticipated numbers, and the caseload grew.

It peaked around 1996-97, and the number of new filings has dropped since then.

While no one can know why for certain, Brown guesses that, over time, the bar became familiar with the applicable standards of review, and stopped filing appeals, if the level of deference to the trial court was high enough that the appeal was not worth filing. He states that the court no longer gets as many appeals challenging only the trial court’s findings of fact, or the trial court’s holdings on issues where the trial court has substantial discretion, such as the admission of evidence.

Unified Court

A primary tension for the new chief will be balancing the fact that the court of appeals is a unified court (a published decision by one district is binding precedent in the other three), but has four distinctive cultures. “So far, we have been able to celebrate our differences, and it is not contradictory to our unified court mission,” Brown states.

The respective districts definitely maintain their own cultures. Discussing when District II, on which Brown sits, decides to have oral arguments, he stated that the court sometimes decides to hold them at the decision conference, because the court wants more information, or because of public policy concerns.

The court also considers the ability of the attorneys; if the court knows the attorneys are experienced appellate litigators, and oral argument will be helpful, the court is more likely to grant it.

Sometimes, the court is at loggerheads and can’t agree, and the court will grant oral argument in the hopes that it will crystallize the issues or move a judge one way or the other to reach a consensus.

Noticeably absent from that list of reasons is whether or not the parties have requested oral argument. Brown states that such requests are of no consequence in District II. In District IV, based in Madison, however, the judges do give weight to the requests of the parties.

Brown notes that in District III, oral arguments are rarely held, simply because of the large geographical area it covers, and the inconvenience and expense to the attorneys and parties. And when Judge William P. Moser, who, according to Brown, “despised oral arguments and considered them a waste of time,” was presiding judge in District I, they had virtually none.

Now, however, District I holds the most, 15 last year, compared with 12 in District II, 5 in District III, and 7 in District IV.

Another example of the differences in the unified but distinct districts is requests for certification to the Wisconsin Supreme Court. In 1996, District I had none, while District II had 10. Districts III and IV had 4 and 2, respectively.

Brown said he has no intent to attempt to change that when he becomes chief, noting such differences don’t threaten the unified nature of the court.

What does pose a problem to any unified court is conflicting precedents. They don’t happen
intentionally, but they happen, whether because two courts decide the same issue so close in time, because the court was unaware of the prior precedent, or because the court simply did not recognize the conflict. “With 3,000 cases per year, that will happen,” Brown said.

He added that he would like for the court to develop a database so that each district could find whether there is another case with the same issue pending in another court. However, every previous chief judge going back to Chief Judge Burton A. Scott (1983-89) has had the same goal, and it hasn’t happened yet.

Another goal is to hold more oral arguments, but given the caseload, Brown said, the court doesn’t have the time.

A potential solution Brown intends to explore as chief judge is videoconferencing. Currently, oral arguments are impracticable in one-judge appeals for misdemeanors and small claims cases, but if the argument could be done by videoconference, it would be feasible for oral arguments in small claims cases, where the stakes are small, but the issues may not be.

Collegiality

Finally, maintaining the court’s collegiality will be a responsibility of the new chief judge. Brown noted that, when the court began, all the judges had permanent ink stains on their hands from reading carbon copies of each other’s drafts, and the courthouse was the only place to do research. The judges saw each other every day and met frequently to discuss cases.

Now that everything is done on computers, the judges can do research on Westlaw and draft opinions from home, e-mailing each other from anywhere, the judges don’t see each other as much or meet as often. As beneficial as the new technology is, is requires the judges to be constantly vigilant to maintain collegiality.

Brown remarked, “Everybody gets along, and our disagreements are professional. Everyone respects everyone else, and understands the concept of collegiality. But we also understand that technology can become a threat to that.

“An appellate court is only as good as it is collegial. Once collegiality is lost, it has lost the war, and is no longer functioning the way it should.”

If long experience and institutional memory of the court is an asset in maintaining that collegiality, the court is in good hands with its new chief.

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